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People v. Burlingame

Court of Appeals of Colorado, Fourth Division

February 7, 2019

The People of the State of Colorado, Plaintiff-Appellant,
v.
Jasmine Burlingame, Defendant-Appellee.

          City and County of Denver District Court No. 15CR4899 Honorable Brian R. Whitney, Judge

          Beth McCann, District Attorney, Katherine A. Hansen, Deputy District Attorney, Denver, Colorado, for Plaintiff-Appellant

          Megan A. Ring, Colorado State Public Defender, Rachel K. Mercer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee

          OPINION

          NIETO JUDGE [*]

          ¶ 1 The People appeal the trial court's dismissal of charges against defendant, Jasmine Burlingame, based on outrageous government conduct. We reverse and remand with directions.

         I. Background

         ¶ 2 Defendant alleged that after a night out drinking with a coworker, she went with him to his home. She reported that later that evening she was raped by his roommate. She submitted to a Sexual Assault Nurse Examiner exam where samples were taken from various places on her body. Police investigators contacted the coworker and the roommate, both of whom volunteered DNA samples which the investigators then compared with the samples taken from defendant's body. The results of the DNA test conclusively showed that it could not have been the roommate who had sexual contact with defendant, but rather that it was the coworker.

         ¶ 3 Upon learning this, two prosecutors, an investigator from the prosecutor's office, and a police detective decided to interview defendant. Defendant was experiencing car trouble, so they visited her at home. They brought a video camera to record the interview and set defendant up on a folding chair in the camera's frame. Out of the frame sat defendant's mother, other female friends and family, the prosecutors, and the investigators.

         ¶ 4 On the video recording, the police detective informed defendant that the DNA proved that it was the coworker, not the roommate, who had sexual contact with her, contrary to what she said had happened. Defendant became visibly upset and began to cry. The prosecutors informed her that they would have to drop the charges against the man she claimed raped her, and they asked her if there was anything else she would like to tell them. Defendant made statements such as "I don't know what to say," and "I don't understand how that is possible." She stated that she had blacked out a lot of the incident, so her memory was less than clear.

         ¶ 5 After several more minutes of discussion, defendant, in tears, told the investigators and prosecutors to leave, and they did.

         ¶ 6 Prosecutors charged defendant with two counts of attempting to influence a public servant and one count of false reporting.

         ¶ 7 The trial court held a hearing where defendant argued, as is relevant here, that the videotape of the interview should be suppressed, and that the case should be dismissed because the government's conduct was outrageous. Defendant had also subpoenaed one of the prosecutors who was present for the interview to testify at the hearing, which the trial court allowed, denying the prosecution's motion to quash the subpoena. During the hearing, the prosecutor, invoking the work product privilege, objected to evidence that might have shed light on the decision-making process that led the district attorney's office to the decisions to interview and file charges against the defendant.

         ¶ 8 In an oral ruling, the trial court dismissed the case based on a finding of outrageous government conduct. It did not ...


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